- 1 - NC: 2025:KHC:15083 CRL.RP No. 489 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 489 OF 2018 BETWEEN: SRI SRIDHAR D S/O DYAVAPPA AGED ABOUT 45 YEARS, GUTTAHALLI VILLAGE, BARUR POST, KASABA HOBLI SAGAR TALUK-577 431 SHIVAMOGGA DISTRICT …PETITIONER (BY SRI. KRISHNAMURTHY M.R, ADVOCATE) AND: SRI. J.B SHIVAMURTHY S/O BASAPPA GOWDA, AGED ABOUT 63 YEARS, CLERK AT BAR ASSOCIATION SHIVAMOGGA COURT COMPLEX, SHIVAMOGGA-577 201. …RESPONDENT (BY SRI. RAJENDRA.S, ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED CONVICTION AND SENTENCE PASSED BY THE LEARNED ADDITIONAL CIVIL JUDGE AND JMFC, SAGAR IN C.C.NO.382/2013 DATED 03.01.2018 AND JUDGMENT PASSED BY THE LEARNED V ADDITIONAL DISTRICT AND S.J., SHIVAMOGGA SITTING AT SAGAR IN CRL.A.NO.10002/2018 DATED 22.02.2018. Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:15083 CRL.RP No. 489 of 2018 THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL ORDER This criminal revision petition is directed against the judgment passed in Crl.A.No.10002/2018 dated 22.02.2018 by the V Additional District and Sessions Judge, Shivamogga sitting at Sagar (hereinafter referred to as 'the First Appellate Court' for short), whereby the First Appellate Court confirmed the judgment of conviction and the order of sentence passed in C.C.No.382/2013 dated 03.01.2018 by the Additional Civil Judge and JMFC, Sagar (hereinafter referred to as 'the Trial Court' for short). 2. Parties are referred to as per their ranking before the Trial Court 3. The abridged facts of the case are as under: The accused and the complainant are known to each other. In the year 2013 the accused availed hand loan of Rs.50,000/- from the complainant for the purpose of his urgent financial necessities. For repayment of the said loan - 3 - NC: 2025:KHC:15083 CRL.RP No. 489 of 2018 amount, the accused issued a cheque bearing No.238784 dated 13.03.2013 drawn on Pragathi Grameena Bank, Tyagarthi Branch. The said cheque was presented by the complainant for encashment, however, the same was returned with an endorsement 'Funds Insufficient'. The said aspect was informed by the complainant to accused, despite, he failed to repay the same. As such, the complainant issued a legal notice to the accused on 23.03.2013, calling upon him to repay the cheque amount. The said notice though served, returned with endorsement as 'not claimed'. As such, the complainant filed the private complaint before the trial Court under Section 200 of Cr.P.C against the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act' for short). 4. In order to prove the case of the complainant, he examined himself as PW.1 and marked 4 documents as Exs.P1 to P4. However, the accused neither examined any witnesses nor got marked any documents. 5. After assessment of oral and documentary evidence placed before the trial Court, the trial Court passed the - 4 - NC: 2025:KHC:15083 CRL.RP No. 489 of 2018 judgment by convicting the accused for the offence punishable under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for a period of six months and further sentenced to pay a fine of Rs.5,000/-. In default of payment of fine, further directed him to undergo simple imprisonment for a period of three months and further directed him to pay a sum of Rs.50,000/- to the complainant as compensation within three months from the date of order. 6. Aggrieved by the above judgment, the accused preferred the criminal appeal before the learned Session Judge in Crl.A.No.10002/2018. Upon reassessment of the oral and documentary evidence and documents on record, learned Session Judge dismissed the criminal appeal and confirmed the judgment of conviction and the order of sentence passed by the trial Court. Challenge to the same is lis before this Court. 7. I have heard the learned counsel, Sri Krishnamurthy M.R., for the revision petitioner and Sri Rajendra S., learned counsel for the respondent. 8. The primary contention of the learned counsel for the revision petitioner is that the trial Court and the Session - 5 - NC: 2025:KHC:15083 CRL.RP No. 489 of 2018 Court grossly erred while passing the impugned judgment by convicting the accused without appreciating the evidence on record in the right perspective. He further contended that the trial Court and the Session Court totally failed to appreciate the defence put forth by the accused that there is no such legally enforceable debt proved by the complainant against the accused and the legal notice sent by the complainant is not served to the accused. Further there is difference in the ink on the cheque in respect of the amount mentioned thereon, the date and the signature of the accused. In such circumstances, the issuance of the cheque itself not proved by the complainant. Accordingly, he prays to allow the revision petition. 9. Per contra, learned counsel for the respondent contended that both the trial Court and the Session Court after meticulously examining the entire evidence and documents available on record, passed well reasoned judgments, which do not call for any interference at the hands of this Court. He would further contend that the accused totally failed to rebut the initial presumption under Sections 118 and 139 of NI Act either by examining any witnesses or by placing any documents - 6 - NC: 2025:KHC:15083 CRL.RP No. 489 of 2018 to that effect. Accordingly, he prays to dismiss the revision petition. 10. Having heard the learned counsel for the respective parties so also perused the documents, the only point that would arise for my consideration is: "Whether the First Appellate Court is justified in dismissing the appeal in Crl.A.No.10002/2018 dated 22.02.2018 thereby confirming the judgment of conviction and the order of sentence passed by the trial Court in C.C.No.382/2013 dated 03.01.2013? 11. I have given my anxious consideration on the arguments advanced by the learned counsel for the respective parties and also carefully perused the entire materials on record placed before me. 12. As could be gathered from the records, it is the specific case of the complainant that the accused availed hand loan of Rs.50,000/- for the purpose of his urgent financial necessities and thereafter, he failed to repay the said amount. Accordingly, he issued the cheque in question as per Ex.P1. The issuance of the cheque-Ex.P1 and the signature of the accused on it is not seriously disputed by the accused. The accused failed to explain how the cheque in question possessed by the - 7 - NC: 2025:KHC:15083 CRL.RP No. 489 of 2018 complainant. Further the accused also failed to reply the legal notice issued by the complainant and also failed to examine any witness to prove his defence. No doubt, the initial presumption arises under Sections 118 and 139 of NI Act, is a rebuttable presumption. However, it is settled position of law that such defence of the accused must be a probable one. In the case on hand the accused has failed to rebut the initial presumption by placing a probable defence. In such circumstances, both the trial Court and the Session Court are justified in holding that the accused is guilty under Section 138 of NI Act. 13. Learned counsel for the accused alternatively submitted that the trial Court imposed a sentence of six months simple imprisonment and Rs.5000/- fine, in default of payment of fine amount, he further directed to undergo simple imprisonment for a period of three months for the offence punishable under Section 138 of N.I. Act. Additionally, directed to pay the compensation amount of Rs.50,000/- to the complainant and the same may be modified by imposing a reasonable sentence. Considering the facts and circumstances of the case, so also the amount involved in Ex.P1, I find force in - 8 - NC: 2025:KHC:15083 CRL.RP No. 489 of 2018 the contention of the learned counsel for the petitioner. Accordingly, I proceed to pass the following: ORDER i. The Criminal Revision Petition is allowed in part. ii. The Additional Civil Judge and JMFC, Sagar in C.C.No.382/2013 dated 03.01.2018 has imposed a sentence to the accused for the offence punishable under Section 138 of the NI Act to undergo simple imprisonment for a period of six months and further sentenced to pay a fine of Rs.5,000/-. In default of payment of fine, further directed him to undergo simple imprisonment for a period of three months, which was confirmed by the V Additional District and Sessions Judge, Shivamogga sitting at Sagar in Crl.A.No.10002/2018 dated 22.02.2018, is hereby set aside. iii. However, the compensation directed by the trial Court and the First Appellate Court is confirmed. iv. The accused sentenced to pay a fine of Rs.50,000/-. In default of payment of fine, - 9 - NC: 2025:KHC:15083 CRL.RP No. 489 of 2018 further directed him to undergo simple imprisonment for a period of six months. v. The Registry is directed to send the trial Court records along with the copy of this order to the concerned Court, forthwith. SD/- (RAJESH RAI K) JUDGE KTY List No.: 1 Sl No.: 32